March 24, 2012
Brewery Workers Can't Strike Because Beer is "Vitally Essential"
... according to a Lithuanian court in a Carlsberg beer case. Thank god! "The company successfully argued that no strike should take place during its 'high season.'" "High season"? Detail here. [JH]
March 23, 2012
Could It Be That Law School Programs Are About To Shrink?
A nod to the History Channel for the headline. I watch way too much of Ancient Aliens. There is news on the announcement from the Law School Admissions Council about the number of LSAT test takers in the 2010-2011 exam period dropping by 16% compared to the year before. The number of test takers is slightly south of 130,000. This is on top of an almost 10% drop in test takers from the year before that. I’d like to take this as a sign that prospective law students are critically weighing their chances of a successful law career against the investment (read debt load). And that’s a good thing, what with the loss of legal jobs and those pesky lawsuits. Should the law schools be worried? Perhaps.
The number of seats in the first year class in the 200 law schools for the 2009-2010 academic year is 51,646. The number of applicants breaks out to 2.51 applicant per seat. That doesn't give admission directors much leeway if they intend to maintain that level of class size, at least without diluting things like average LSAT score and likely average GPA. There's always pressure to get the highest student numbers for working up the rankings, if not bragging rights.
The top schools will have no problems picking the best applicants no matter how this turns out. The bottom schools will have to consider shrinking their program or in the alternative, lower their student body quality. A smaller pool of applicants will give those with lower scores more options to attend better schools. Eitehr option, lowering the quality of student or eliminating seats will certainly cement the position of some law schools in the lower tiers of the U.S. News rankings. A lot of this depends, of course, on different factors such as the mobility of the applicant pool, loyalty to a particular program, legacy admissions, and the like. Still, the lower numbers will mean fewer law students no matter what.
The business of running a law school is going to take a financial hit if the trend with these numbers continue. What will university presidents do when the coming revenue numbers don’t match historical chargeback levels they impose on their law schools? [MG]
"Co-sponsor" House Legislation: There's an app for that
Well, it is a Facebook app sponsored by House Majority Leader Eric Cantor. Called Citizen CoSponsor, it allows users to track and comment on House legislation. Citizen CoSponsor also "provides the majority leader's office with an interesting new grassroots marketing tool for the Republican party's ideas." Quoting from Sarah Lai Stirland's TechPresident story. She adds "For now, the list of legislation that citizens can choose to support is controlled, of course, by Cantor's office and is listed on a section of his web site." (Meaning MajorityLeader.gov.)
This could backfire. All one has to do is "co-sponsor" a bill one opposes and speak one's mind by adding comments. [JH]
Friday Fun: Good Manners & the Golden Rule in the Office & Workplace
With all the news about Encyclopaedia Britannica going digital only, perhaps we have forgotten that EB was a "multi-media" publisher decades ago. Here's a clip from Encyclopaedia Britannica Films' "Office Etiquette" (1950).
Good manners seems to have been a bit of an obsession with the producers of Encyclopaedia Britannica Films. The intended audience of Are Manners Important? (1954) is children. [JH]
Recent GlobaLex Legal Research Guides
The following guides have been updated:
- Guide to Legal Research in El Salvador by Oscar Samour
- Guide to Legal Research in Nicaragua - Update by Andrea M. Vidaurre
- Philippine Legal Research by Milagros Santos-Ong
- Legal Research in Slovakia (Including a Brief Description of Slovak Political and Legal System) Update by Peter Klanduch
More articles on international, comparative, and foreign law research at GlobaLex. [JH]
March 22, 2012
Scott Turow Wants the DOJ to Back Off Of Apple
Scott Turow, author and president of the Authors Guild wrote a lengthy essay yesterday in Bloomberg Business Week decrying the possibility of the Justice Department suing Apple and publishers for colluding on e-book pricing. Turow says that industry insiders tell him pricing was never discussed as part of the Apple-publisher negotiations. His real target is not the DOJ but rather Amazon which he describes as the “Darth Vader of the literary world.” Apple and Steve Jobs is the “white knight” that rescued the ailing publishing industry with the agency model.
There are a lot of questionable statements in the essay. Turow says, for example, that publishers would have made less from Apple than what they were making from Amazon, so how could that be collusion? I don’t know. Do allegations of price-fixing (assuming that’s what the DOJ intends to charge) require an immediate pay-off? Then again, he suggests that it’s worth adopting the agency model just to keep Amazon from wielding immense market power.
He more or less blames Amazon for driving Borders out of business, though more than one outside analysis of Border’s problems suggests the book chain made a lot of bad decisions that led to its demise. One is how the physical stores went heavily into physical audio and video media at time when consumers were transitioning to streaming and downloading. There was the slow transition to online sales, long after Barnes & Noble got there, along with a tendency not to discount in face of the competition.
Let’s not forget that Borders was purchased by Kmart in 1992, not exactly a company sympathetic to the diverse literary culture Turow so lovingly describes, at least not outside of hawking product. A succession of tone deaf marketing executives running Borders didn’t exactly help the company either. If anyone remembers, Borders started its own imprint long before Amazon got into the publishing business with its first title, Slip and Fall by Nick Santora. Borders’ problem wasn’t that it couldn’t compete with Amazon as much as it competed badly. How many publishers are happy that Borders couldn’t pay the bills for the stock?
Then there is this:
Physical bookstores offer not simply an intoxicating experience for serious readers. They have an irreplaceable role in introducing new writers. Market research consistently shows that readers are far more adventurous in their choice of books when in a bookstore than when shopping online. In bookstores, readers are open to trying new genres and new authors: It’s by far the best way for new works to be discovered.
It may be the best way in some respects, but it is certainly not the only way serious readers can discover new works. Amazon has the peek inside a book feature for many titles. If I’m not mistaken, the Author’s Guild is doing everything in its power to prevent Google from offering a snippet view to commercial works under copyright via search. It sounds more like an issue of control than allowing an online consumer to choose an also convenient discovery method.
The world has moved online whether we like it or not. We can choose to participate in it or not, or to an individual degree of comfort. Turow says “Publishing shouldn’t have to choose between bricks and clicks.” I’ll ask why the consumer should be forced into the same choice. The real problem with the book market is that, despite the art and creativity that goes into authorship, books are mass marketed as a commodity. The music industry has painfully discovered the truth that online commodities can’t command the same pricing it did in the physical world.
There is a certain amount of irony when Turow describes Apple’s iTunes agency model relevant to digital books. I’ll note that Apple’s interest is financial in that the company keeps 30% of the sale price. 30% of $24.99 is a lot higher than 30% of $9.99. Remember Apple forced music labels into lower pricing via iTunes because it was in Apple’s interest to do so. The labels in fact tried desperately to find competition for Apple and were thrilled when Amazon got into the music distribution market. No one wanted to be at the mercy of Apple for directing the music market. And now Apple is good just because it checks Amazon’s power by forcing the latter to offer high prices?
The last I heard, the antitrust laws are specifically designed to foster competition that benefits the consumer. They are not there to give authors and publishers a comfortable living in a changing market. All marketers would like to keep prices high if they could. There is nothing special about books in relation to the trade laws. If Amazon is such a market bully, I suggest Turow and company file complaints with the FTC, the DOJ, the EU, and every competition authority out there. They are not shy in addressing market abuse. And as to the course of authors in a changing world, I suggest they adapt. [MG]
AALL Bloomberg Law Announces Winner of AALL's New Product of the Year Award
And ... it's Bloomberg Law. I don't recall seeing this in the March 2011 2012 (oops!) AALL eNewsletter (posted March 15th). I guess the decision was made after that date. And nothing on AALL's front page when I received the news. Perhaps it was posted in a web community group (but I only take the daily summary). Here's the link to today's BLaw press release.
Here is AALL Executive Board member Greg Lambert's reaction to the news on 3 Geeks.
I had a great conversation with Bob Hopen from Bloomberg Law and Cameron Austin of BNA yesterday, and we talked about a number of things that are going on at Bloomberg/BNA. However, they failed to mention to me that they were named by AALL the 2012 New Product of the Year. Congratulations!
Ditto. I'm thinking this year's award will be less controversial than last year's award. For now, however, BLaw's big sales push is directed at BigLaw firms. It may take awhile before sales pitches for AALL's 2012 New Product of the Year make it down to the lower ranks of the institutional buyers food chain.
Some of us receive vendor press releases by email. Kudos to Greg for checking his email more frequently than I do. [JH]
"[N]ot every ailment afflicting society may be redressed by a lawsuit:" NYLS placement data class action lawsuit dismissed
ATL's Staci Zaretsky has the story. Quoting from David Anziska and Jesse Strauss litigation team's response to the New York Supreme Court's ruling:
Essentially, the judge’s two main points are that a reasonable consumer should have known better and should not have reasonably relied on NYLS’s detailed employment reports and that damages are too speculative. We believe that these issues are questions of fact — not law — and that the First Department will agree with us. This is one setback is a long-term process, and we always expected for many of these issues to ultimately be resolved on an appellate level. Moreover, we fully intend to soldier on and to sue many more law schools in the forthcoming weeks and months ahead.
Text of the New York Supreme Court's order and decision in Gomez-Jimenez, et al v. New York Law School. [JH]
'Non-Humans' Account for 51% of Web Traffic
"51% of your site’s traffic includ[es] some seriously shady non-human visitors including hackers, scrapers, spammers and spies of all sorts," reports web security firm Incapula. Search engines that index the Internet account for 20% of all traffic. The balance is made up of hacking tools (5%), content scrapers (5%), comment spammers (2%) and various types of robotic spyware (19%).
This means that only 49% of traffic to a web destination comes from real people, you know humans (like this guy). [JH]
March 21, 2012
Supreme Court Action: More Ineffective Assistance, And It's OK To Sue The EPA
Yesterday’s four opinions are followed by three today. Two concern ineffective assistance of counsel at the plea bargaining stage, and the third concerns property rights under the Clean Water Act. The first of the two ineffective assistance cases is Lafler v. Cooper (10-209). The case is heavily fact dependent. Cooper was charged with assault with intent to commit murder as well as three other offenses. The prosecution offered a deal where the state (Michigan) would dismiss two of the charges and recommend a 51-85 month sentence on the remaining counts.
Cooper wrote to the trial court admitting guilt and expressed a willingness to accept the terms. His attorney, however, convinced him that the State would not be able to establish intent to commit murder as the victim was shot below the waist. Cooper went to trial and was convicted on all counts and sentenced to a mandatory minimum 185-to-360 month sentence. Suddenly that plea deal looked a bit more enticing.
Cooper appealed his conviction on the grounds that his attorney’s advice to reject the plea deal amounted to ineffective assistance of counsel. The Michigan Court of Appeals affirmed the conviction and Cooper ultimately filed a petition for habeas corpus in the federal District Court. The Court there granted relief stating that the Michigan appellate court had unreasonably applied ineffective assistance standards as laid down in Strickland v. Washington. The Sixth Circuit affirmed on the basis of an attorney advising his client on an incorrect legal rule.
The Supreme Court stated that a defendant such as Cooper would have to show that but for the ineffective advice, the plea offer would have been presented to the court, accepted by it, and the result of the plea would be less severe than the result at trial. The Government argued that the Sixth Amendment is narrowly confined to the trial process and a fair trial wipes out pretrial ineffective assistance. Not so says the Court, citing precedent establishing Sixth Amendment safeguards throughout the criminal prosecution process.
The Court next elaborated on the appropriate remedy when a defendant can show prejudice from counsel’s advice. One is where the trial court holds a hearing to determine whether the defendant would have accepted the plea but for the bad advice and then determine the sentence based on the plea, the sentence given at trial, or something in between. The other possibility is for the prosecution to renegotiate the plea, leaving the judge the discretion to accept the plea or leave the trial’s outcome undisturbed. The Court declined to offer standards as to how the trial judge should exercise discretion in these situations. As to the facts in this case, the Court said the correct remedy was the latter.
Justice Kennedy delivered the opinion of the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Scalia dissented, joined by Justice Thomas and Chief Justice Roberts (except to Part IV). Justice Alito also dissented in a separate opinion. Justice Scalia would leave the conviction undisturbed as Cooper received a fair trial. His outrage at the Court’s decision is palpable. Justice Alito agrees with Justice Scalia, but notes that he hopes the trial judge implementing the remedy does not lead to an unjust result, assuming unjust means Cooper gets a lighter sentence.
The companion case with opinion is Missouri v. Frye (10-444). This case is also fact dependent, though the Court applies the same concepts from the Lafler case here. Frye was charged in Missouri with driving with an expired license. He was convicted of the same charge three times before, thus making this one a felony with a possible four year prison sentence. The prosecutor in the case offered Frye’s counsel a plea deal that included an offer to reduce the charge to a misdemeanor and with a guilty plea, a recommended 90 day sentence. Frye’s counsel never told Frye about the offers and they expired. Less than a week before Frye’s preliminary hearing he was arrested on the same charge. He pleaded guilty (not under any plea agreement) and received a three year sentence.
Frye sought post-conviction relief in state court on the grounds that had he known about the initial plea offer, he would have accepted the plea. The trial court denied relief but the Missouri appellate court reversed, holding that in not communicating the plea counsel was ineffective. The Supreme Court held that the non-communication of the initial plea was ineffective assistance. It sent the case back to Missouri for a hearing where Frye would show that he would have accepted the plea deal had he known about it. He would also have to show that the prosecution would have adhered to the deal given that he was charged with the same offense just before his preliminary hearing, and that the trial court would have accepted it under the same circumstance. Justice Kennedy delivered the opinion of the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Scalia dissented, joined by Chief Justice Roberts, and Justices Thomas and Alito.
The third case received a lot of pre-argument publicity. The case is Sackett v. EPA (10-1062). The EPA charged the Sacketts with a violation of the Clean Water Act when they filled in some of their land in preparation for constructing a house. The agency issued a compliance order that required the Sacketts to restore the wetlands on their property. There is some issue as to whether the described wetlands are actually controlled by the Clean Water Act. The Court declined to decide this case on that basis. Rather, the Court’s narrow issue is whether the Sacketts could sue the EPA under the Administrative Procedure Act (APA).
Procedurally, the Sacketts asked the EPA for a hearing, which was denied. They sued in the District of Idaho seeking declaratory and injunctive relief, contending that the EPA’s action under the APA was arbitrary and capricious and deprived them of property rights under the Fifth Amendment. The District Court dismissed their complaint for lack of jurisdiction. The Ninth Circuit affirmed on the basis that the Act precludes judicial review and further that the preclusion does not violate the Fifth Amendment.
The Court held that review is permissible as the order represents a final agency action under the terms of the APA. Moreover, nothing in the Clean Water Act expressly precludes judicial review under the APA “or otherwise.” The presumption of the APA is for judicial review, and the statutory scheme of the Clean Water Act does not overcome this presumption, Government arguments to the contrary notwithstanding. [MG]
Round 2 of "The Most Honest Law School", ATL's March Madness 2012, Is Underway
Winners and losers of Round 1 here. Got to page 2 of the ATL post to vote in Round 2. [JH]
Imagine If Law Firms and Libraries Stood Up to the WEXIS Duopoly
Remember the Boycott Elsevier movement that started in January of this year? To date over 8,000 researchers have registered their protest against the business practices of Elsevier journal publishing by refusing to submit a paper to an Elsevier journal, not to referee for an Elsevier journal, not to join an editorial board of an Elsevier journal, or some combination of the three. Like any good grassroots movement, this one spawned an independent wiki to collect and disseminate information on the issue of the cost of knowledge. See Journal Publishing Reform.
Reed Elsevier CEO Erik Engstrom called the boycott a "misunderstanding." Dr Tim Leunig, the editor of Explorations In Economic History, an Elsevier journal, publicly criticized that comment:
[Erik Engstrom] should be honest and state that in many cases his journals have an element of monopoly power.
Guess what happened? On March 11, 2012, Alex Hawkes reported Elsevier "suddenly cut the annual subscription price of Explorations In Economic History from £58 to £31 after the journal's editor Dr Tim Leunig publicly criticised [Reed Elsevier's] reaction to the boycott."
On Real Lawyers Have Blogs, Kevin O'Keefe adds
Imagine law firms and libraries standing up to the LexisNexis and Thomson Reuters Westlaw duopoly and getting a 47% price reduction in packaged legal research.
There is, of course, a difference between academics refusing to provide content and services for Elsevier journals and institutions boycotting the WEXIS duopoly as users of their services. It is pretty damn hard to boycott WEXIS when one is a captive consumer. But isn't that the reason why there is a real need for consumer advocacy? [JH]
March 20, 2012
Supreme Court Action Today: Longshoreman Benefits, Medical Patents, FMLA and Sovereign Immunity, and Habeas Corpus
The United States Supreme Court issued four opinions this morning. At least one is getting press attention. It’s not the case of Roberts v. Sealand Services, Inc. (10-1339), which concerns benefit payments calculation under the Longshore and Harbor Workers’ Compensation Act (LHWCA). The Secretary of Labor determines the benefit rate for the most recent fiscal year in which an injured employee is “newly awarded compensation.” The process for awarding benefits is informal, though if either the employee or employer contests the award, hearings are held under the auspices of the Department of Labor. These are also informal, but can be formalized before an administrative law judge who will issue a compensation order.
Roberts was injured in 2002 and was paid benefits under the informal arrangement until fiscal year 2005 when he filed a statutory claim. The ALJ awarded benefits in fiscal year 2007 at the 2002 statutory rates. Roberts argued that the statutory language “newly awarded compensation” should have set the benefits at the 2007 rate rather than the 2002 award. The ALJ denied the change in rates as did the rest of the procedural chain in the Department of Labor. The Ninth Circuit affirmed.
The Supreme Court also affirmed the determination of benefits holding that the language of all applicable provisions in the statute lead to the result where the first award of benefits means “newly awarded compensation.” It would make no sense, for example, for two similar employees injured on the same day to receive different benefit rates based on when a formal award was ordered. The Court’s interpretation preserves the internal logic of the statutory scheme as intended by Congress. Justice Sotomayor delivered the opinion of the Court and was joined by all Justices except Justice Ginsburg who wrote a separate opinion concurring in part and dissenting in part.
The case of Mayo Collaborative Services v. Prometheus Laboratories, Inc. (10-1150) is not surprisingly getting coverage in the tech press. This is a case concerning the patentability of diagnostic methods in medicine. Prometheus owns two patents that describe steps doctors should take steps in determining the dosage of thiopurine drugs in treating autoimmune disease. The patents identify correlations in dosages that determine whether a patient is at risk for side effects due to too high a dosage and ineffectiveness due to too low a dosage. This is stated in three steps, administering the drug to a patient, a determining effect where the doctor measures the metabolite of the drug in the patient’s blood stream, and the wherein step where the doctor determines whether the dosage is too high or low.
Mayo licensed the patent but later announced that it intended to sell and market its own diagnostic test which was somewhat different from that of Prometheus. Suit was filed by Prometheus. The District Court held that the patents were violated but since the patents described a natural process and as such were not patentable, granted summary judgment to Mayo. The Court of Appeals for the Federal Circuit reversed holding that the process was patent eligible under the “machine or transformation test,” even under the Supreme Court’s holding in Bilski v. Kappos which held the machine or transformation test was not definitive for determining patentability.
The Supreme Court reversed, stating the basic principle that the laws of nature are not patentable, which in this case is the nature of how the drug is measured in the bloodstream. The patents at issue do not describe an application of the law of nature. They are designed to monopolize the correlations instead. The three steps described in the patent are not natural laws, but they are not enough to transform the claim into something patentable. They add nothing to natural law as they describe a diagnostic process used by doctors over time in many circumstances. Prior case law supports this result. Justice Breyer delivered the opinion for a unanimous Court.
The case getting the most press coverage is Coleman v. Court of Appeals of Maryland (10-1016). Coleman was an employee of the Court of Appeals and sought medical leave under the Family Medical Leave Act (FMLA) under the section allowing for leave when an employees’ serious health condition interferes with his ability to perform work. Coleman’s leave was denied and he filed suit under the statute’s private right of action provision. The Court’s earlier precedent allowed suits against states and state agencies under the statute’s other provisions where a relative was ill, and where there was evidence of family-leave policies that discriminated on the basis of sex. Coleman’s suit against the Maryland Court of Appeals was dismissed on sovereign immunity grounds with the Fourth Circuit upholding the dismissal.
The Supreme Court affirmed the result in a 5-4 decision where four Justices joined a plurality opinion and a fifth Justice joining in the judgment. The Plurality reasoned that the sex-based discrimination allowing suit against states under other provisions of the FMLA is not present in the self-care provision. First, the self-care provision is not a statement of abrogation of sovereign immunity as expressed by Congress and it does address sex discrimination and sex stereotyping. Secondly, there are no congressional findings or evidence on how the self-care provision is necessary to the family-care provisions or how it reduces employee discrimination against women. Thirdly, while evidence of disparate impact on women as single parents under neutral leave policies may be evidence of discrimination, it does not necessarily rise to the level of a constitutional violation. It is unlikely that neutral leave policies are unconstitutional and as such, the scope of the self-care provision is out of proportion to the suggested remedy.
Justice Kennedy announced the judgment of the Court, joined by Chief Justice Roberts, Justice Thomas, and Justice Alitio. Justice Thomas also filed a concurring opinion. Justice Scalia filed an opinion concurring in the judgment, and would sharply limit the application of the Fourteenth Amendment as developed by earlier Court precedent. Justice Ginsburg filed a dissenting opinion joined by Justice Breyer, and Justices Sotomayor and Kagan except for the text of footnote 1. The bottom line is Maryland and other states are immune from suit under the self-care provision of the FMLA, at least until the Court revisits this issue.
The final case of the day is Martinez v. Ryan (10-1001). It involves claims of ineffective assistance of counsel in habeas corpus proceedings. Arizona has a rule where prisoners may raise claims of ineffective assistance of counsel in collateral proceedings rather than on direct review. Martinez’ lawyer did not raise the claim in his state collateral review. Martinez did raise the claim in the later proceeding Federal District Court claiming ineffective assistance at his trial and his state collateral proceeding. He believed he had a constitutional right to an effective attorney in the collateral state proceeding as it was the first time he could raise the issue of effectiveness of counsel. The District Court denied the habeas petition and the Ninth Circuit affirmed.
The Supreme Court reversed, holding that a procedural default in the state collateral proceeding will not bar a Federal District Court from hearing the claims if there was no counsel or ineffective counsel in the initial state collateral review. The Court declined to take up the issue of whether there is a constitutional right to counsel in these circumstances. Martinez still has to establish evidence of ineffective assistance of counsel. Procedurally, though, the result is determined in part by the requirements of how prisoners can raise these claims for the first time. Justice Kennedy delivered the opinion of the Court joined by all except Justice Scalia, who wrote a dissenting opinion which was joined by Justice Thomas. No one noted the irony of the reversal of the Ninth Circuit in a case where the Court of Appeals UPHELD the denial of a petition for habeas corpus. [MG]
It's Official, LexisNexis Has Acquired Law360
The rumors are true. This morning LexisNexis announced that it has acquired Portfolio Media, the parent company of Law360® (www.Law360.com). According to the press release, Law360's 30-plus practice area online daily newsletters are "read by well over 100,000 law firm and business professionals ranging from litigators, corporate counsel and transactional attorneys to law librarians and legal administrators."
From today's press release:
“Breaking legal news and analysis are critical for legal professionals as they drive success for their businesses and clients,” said Bob Romeo, CEO of Research and Litigation Solutions at LexisNexis. “Law360 is a key element of our growth strategy because it adds legal news and analysis, a crucial part of an attorney’s workflow and a key entry point to legal research.”
Timely legal news and analysis reporting does lead to legal research. Bloomberg Law added BNA in part for BNA's timely practice area news and analysis reports and its strong Washington DC press corp. LexisNexis has now added Law360 (coverage). Trailing the pack for the moment is Thomson Reuters. It will have to do better than its News and Insights: Legal website and a couple of News & Insights legal newsletters and TR blogs to ratchet up the synergy between legal current awareness and legal research. [JH]
Another Copyright Infringement Class Action Suit Filed Claiming Unauthorized Commercial Database Distribution of Court Filings
Following the class action complaint filed by attorneys Edward L. White and Kenneth Elan in the US District Court for the Southern District of New York, (12-cv-01340-JSR) last month, attorney David J. Heinlein filed a similiar complaint aledging copyright infringement for unauthorized reproduction and distribution of court filings in the U.S. District Court for the District of Connecticut (12-00386) on March 14th. Unlike the earlier class action which is suing both West and Lexis, Heinlein is only suing West. Hum, perhaps Heinlein and the attorney representing the class do not have a Lexis account. Perhaps they found none of Heinlein's briefs in Lexis. Or ... a private settlement? Or ... a take-down notice replied with an "OK"? Hell if I know.
Hat tip to Legal Research Plus for calling attention to this latest US lawsuit and providing a copy of the Heinlein class action complaint.
Up in Canada... . On Feb. 21, the Ontario Superior Court of Justice certified the class in a similiar copyright lawsuit against Thomson Reuters under Canadian law. Last week, Julius Melnitzer wrote about the proceedings in the Financial Post. See Lawyers target Thomson Reuters in copyright class action. ("On the one hand, Thomson Reuters seems to thinks enough of the work product to view it as a revenue centre. ... On the other hand, Thomson Reuters doesn’t seem to think enough of the work to consider paying lawyers for it.") Melnizer reviews the arguments TR offered opposing class certification and interviews the lead plaintiff while also providing some information about how much TR has spent to acquire court pleadings. Recommended.
I'm wondering if TR Legal and/or Lexis has uploaded the plaintiffs' pleadings in any of the above class action lawsuits. Anyone have access to Westlaw Litigator for Canadian court files? The Ontario Superior Court case is Waldman v. Thomson Reuters Corp., 10-CV-403667CP.
Do note, I have no idea if court pleadings are only uploaded by WEXIS after the merits of the case is decided. Perhaps someone will be curious enough to see if TR Legal and/or Lexis uploaded the motions and briefs in Rudovsky. [JH]
March 19, 2012
Copyright Office Hearings On DMCA Exemptions Announced
The Copyright Office is holding hearings on exemptions to prohibitions on circumvention of copyright protection systems for access control technologies, or the stuff that companies use to prevent consumers from mucking about with the electronics and content that they buy. Some of the information about this process, mandated by the DMCA every three years, is here. The March 15th Federal Register notice announcing the hearings is here.
It announces that the first public hearing, confined to demonstrations of technology, will be held in Washington, DC on Friday, May 11, 2012 at 10 a.m. Public hearings will also be conducted in Los Angeles, California at 9 a.m. on Thursday, May 17, 2012 and Friday, May 18, 2012, and in Washington, DC at 9 a.m. on Thursday, May 31, 2012, Friday, June 1, 2012, and Monday, June 4 through Wednesday, June 6, 2012. Requests to testify must be received by 5 p.m. E.D.T. on Monday, April 2, 2012
There are two small points about the announcement worth mentioning. One is that the link in the notice for requests to testify submitted through the request form available at http://www.copyright.gov/1201/hearing-request leads to a "page not found message." Another paragraph in the notice says this:
Requests to testify must be submitted via the Office’s Web site form located at http://www.copyright.gov/1201/ and must be received by 5 p.m. E.D.T. on Monday, April 2, 2012. Persons who are unable to send requests via the Web site should contact Ben Golant, Assistant General Counsel, Office of the General Counsel at (202) 707–8380 to make alternative arrangements for submission of their requests to testify.
The second point is that the referenced page does not contain (as of this writing) a link to the online form. Sometimes the old contact technologies work the best, I guess. One of the items for which an exemption is sought is literary works in the public domain that are made available in digital copies. This was submitted by the Open Book Alliance. Here’s some of the relevant text in the OBA’s statement:
It is well known that Google, Inc. has reproduced millions of books in their entirety, including both those in the public domain and those that remain in-copyright, through systematic scanning operations set up with several large research libraries. Less well known is that Google has contractually required these libraries "to implement technological measures . . . to restrict automated access to any portion of the [digital book copy] or the portions of [the library] website, that make those copies accessible to library patrons - including digital files of books in the public domain.
By definition, the imposition of TPMs on digital copies of these public domain works will "adversely affect" users in "their ability to make non-infringing uses" of them within the meaning of Section 1201(a)(1)(C). Section 1201 was never intended to protect a company's non-copyright business interests in public domain works, particularly where it could be used for anticompetitive purposes.
Comments are closed on the proposed classes of exemptions, but the requests to testify at a hearing are not, assuming anyone can make a formal request to testify. The deadline is two weeks away. [MG]
"Extraordinary public interest" in the Patient Protection and Affordable Care Act oral argument is still not a good enough reason for SCOTUS to allow proceedings to be televised
In response to news organizations requests, SCOTUS announced on March 16, 2012 that it will post the audio recordings and unofficial transcripts of the oral argument for the March 26, 27, and 28, 2012 proceedings in the Patient Protection and Affordable Care Act consolidated cases on an expedited basis through the Court's website. "The audio recordings and transcripts of the March 26-28 morning sessions should be available no later than 2 p.m. The recording and transcript of the March 28 afternoon session should be available no later than 4 p.m."
The Court's statement did not mention media requests to televise the proceeds. The omission makes it clear that SCOTUS is maintaining its long-standing ban on doing so. C-SPAN annouced that it will broadcast the tapes on C-SPAN 3, C-SPAN Radio and C-SPAN.org “as soon as they are released.” For more details, see Lyle Denniston's Prompt release of health care audiotapes on SCOTUSblog.
The doomed request to televise the oral argument. In a letter dated Nov. 15, 2011, Brian Lamb, the chairman of C-Span, wrote to CJ Roberts requesting that SCOTUS allow cameras in the court for the oral argument the day after the Court decided to hear the consolidated cases: "We believe the public interest is best served by live television coverage of this particular oral argument." On Nov. 18, 2011, The Reporters Committee for Freedom of the Press, a coalition of media organizations that included the likes of Wolf Blitzer (CNN), Andrea Mitchell (NBC News) Bob Schieffer (CBS News) Eric Schmitt (The New York Times), Judy Woodruff (PBS/The NewsHouse) on its Steering Committee supported Lamb's request, stating
In his similar request to the Court, C-SPAN chairman and chief executive officer Brian Lamb writes that audio-only coverage of a 5 ½-hour event in which all the justices and various counsel will participate would not sufficiently serve the public interest in closely monitoring and understanding the proceedings. We agree with him.
On Nov. 28, 2011, Adam Liptak wrote in his New York Times Sidebar column, Supreme Court TV? Nice Idea, but Still Not Likely, that the request to televise the argument in Patient Protection and Affordable Care Act cases was "of course, doomed. Yet it is hard to say why."
The Supreme Courts of Canada and the United Kingdom allow cameras. What the public sees in those countries, and what it would see here, is something not always prominent in the elected branches of our government: able public servants with a complete mastery of difficult materials grappling seriously with matters of surpassing consequence. It probably inspires confidence. It certainly dispels ignorance.
The arguments against cameras are mostly rooted in paternalism or self-interest. Some justices say the public cannot be trusted to understand what goes on at oral arguments and how the arguments figure in the work of the court. Others worry that additional public scrutiny would alter the behavior of lawyers and justices for the worse. Still others say they fear harm to their personal privacy or to the court’s prestige.
In an interview, Mr. Lamb said he had heard one main objection from the justices. “It’s the sound bite,” he said. “They don’t like, in the modern age, that people can sound bite them.”
See also C-SPAN's Cameras in the Court for each Justice's view on the issue of opening the Court to cameras, based on their individual public statements
So SCOTUS is worried about media coverage about what they might say from the bench. You might as well ban reporters from the courtroom. Hell, you might as well ban ordinary citizens from the courtroom and conduct all SCOTUS official courtroom proceedings sub rosa.
In this instance, we are talking about televising a not insignificant proceeding -- the constitutional challenge to President Barack Obama's health care reform law. The media will still extract "sound bites" from the expedited audio and unoffical transcripts in televised, print and web communications. The "ordinary citizen" who might be lucky enough to sit in SCOTUS' courtroom may tweet during or at least afterwards "sound bites." Duh!
With respect to the Patient Protection and Affordable Care Act cases it borders on the incredulous to take the Supreme Court's denial of requests to allow cameras in the courtroom because of its traditional ban seriously. This branch of government simply does not like the other branches of the federal government "suggesting" what SCOTUS should do. See, for example, Televising SCOTUS Proceedings: Serious Issues While Tossing in a Cynical 2-Cents Perspective and a Bit of Power Broker History and Short but Sweet? CJ Roberts informs Senate Judiciary Committee Chairman that SCOTUS does not intend to adopt the Code of Conduct for US Judges.
There is another important issue here. For the constitutional-challenged, by which I mean the subscribers to the originalist school of thought, my hunch is James Madison is probably turning over in his grave because of the ban on cameras in all federal courts. I'm thinking James Madison would want open access by way of all publication mediums including TV if it existed in the 1780s. TV has been around for 60-plus years now so this isn't some bleeding edge communications medium. Not only can televised proceeding inspire confidence and dispel ignorance, the audio-visual medium has become an archival medium, one that can educate the public at large by preserving an official audio-visual record for all in the 21st century.
More narrowly focused, an archive of televised official congressional proceedings will become part of legislative history research. An archive of official televised federal court proceedsing also should become part of the official court record. While our major legal vendors have responded to the "Google Generation" in the next-gen current-gen search systems, there is no doubt in my mind that they will eventually also respond to the "YouTube" generation by enhancing their databased and eBook resouces with both official audio and videos in addition to text transcripts and add videos that provide commentary and analysis as part of "secondary source literature". Do note, I have failed to find one of our major legal information vendors who joined the call to televise either this specific SCOTUS proceeding or to call for the removal of the ban on federal courts to do so. Perhaps my research in this regard is faulty; perhaps some of our major legal vendors aren't prepared for the "YouTube" generation yet. At least with respond to "secondary source" video content, Bloomberg Law is not one of those vendors.
So while major media outlets' call on SCOTUS to televise this one proceeding has been rejected, that rejection can be viewed as a "plus" in the larger context of the Open Government movement. Eventually SCOTUS and our entire federal court justice system cannot ignore modern communications.
"Being There", in person or 'virtually". Thanks to retired Supreme Court Librarian, Judith Gaskell, I once attended a SCOTUS oral argument during a trip to Washington DC; the trip was, well to put it frankly, one of those attempts academic law librarians something do in an effort to reinforce an alumni-donor interest in continuing to support his law school. Because I was not well-versed issues involved until afterwards, let's close this post with a comment by someone who was far, far, better qualified than I was when she attended a SCOTUS session in person.
“Everybody was so prepared, so smart, so obviously deeply concerned about getting to the right answer,” she said at the Aspen Institute in August. “I thought if everybody could see this, it would make people feel so good about this branch of government and how it’s operating. And I thought it’s such a shame actually that only 200 people a day can get to see it.”
Quoting from Liptak's Supreme Court TV? Nice Idea, but Still Not Likely.
Some resources for the Patient Protection and Affordable Care Act issues presented to SCOTUS:
Reminder: AALL State Advocacy Webinar Set for Tomorrow, March 20th
From the webinar statement:
In the midst of a rapidly changing technological environment, state budget cuts that threaten the very existence of public law libraries, and a growing number of state governments looking to eliminate print legal resources in favor of online-only, now is a critical time for law librarians to speak up for the important issues that affect the profession. Join this free webinar to learn practical skills and strategies to make a difference in your state. You’ll hear the latest and most effective ways to influence decision-makers, learn how the Southern New England Law Librarians Association (SNELLA) and AALL mobilized to save Connecticut’s courthouse law libraries from closure, and come away prepared to advocate for the enactment of the Uniform Electronic Legal Material Act (UELMA) to ensure authentication and preservation of electronic legal material in your state.
- Participants will be able to identify AALL’s policy priorities at the state level.
- Participants will learn practical skills to influence decision-makers.
The one hour webinar is free to all AALL members and chapter members. To register, go here.
Save the date for --
Making Your Voice Heard: Your Role in State Advocacy
Tuesday, March 20, 2012, 11:00 AM - 12:00 PM CDT
March 18, 2012
Browsing On A Sunday: Who's Your ISPy, Google Scan Art, and Libraries As Publishers
Get ready for your ISP to turn into the copyright police. The RIAA and MPAA are celebrating the fact that most ISPs are “voluntarily” adopting a six strike plan to monitor their customer’s downloading habits. The system should be in place by July 12 for most major carriers. There is little announcement of the techniques to be used. That’s not surprising. Why give notice on how the system will catch people. Will it be deep packet inspection? P2P traffic? Will it be directed at a list of blacklisted sites? Both? Either way, the general public will be in for some shock when the emails start to come in notifying of copyright violations.
There are even more questions about the accuracy of the system. It’s not as if major content owners haven’t sent false DMCA notices. Why do I get the feeling that the presumptions on the system will favor content owners? Maybe it’s because of the $35 filing fee to appeal. I suppose that is to discourage casual appeals. Ars Technica reported some while back on the process to challenge a piracy notification.
How will this be affected by public Wi-Fi hotspots. Will Starbucks become a haven for pirates? We’ll just have to wait for the major providers to send out that unilateral take it or leave it notice of a change in terms of service. More details are on Digital Trends. If some people are upset with Google and other companies for monitoring their search habits, ISPs seem to push that envelope a bit further. What Google does seems quaint in comparison. Expect lawsuits. It’s America, after all. This will be one big entertaining mess.
Speaking of Google, the scanning project apparently has outtakes. This happens when a hand or finger or other item winds up in the scan. These are turned into works of art by Andrew Norman Wilson. Details are at The Next Web. The images are fairly striking.
One suggestion for libraries to get around publisher policies on e-books comes from Publisher’s Weekly, of all places. That would be for major libraries to start their own electronic imprint. Larger libraries such as the New York Public Library could probably pull this off with their brand recognition. It’s not so outrageous for a library to break into a publisher’s territory when publishers try to cut the libraries out of e-book distribution. I wonder what publishers would think about this possible competition. [MG]
Round-Up of Law Practitioner Blogs
Pasadena Bankruptcy Lawyer Blog
Examines bankruptcy cases, news, and related topics in California. Published by DCDM Law Group.
Georgia on Two Wheels
Discusses motorcycle accident news, cases and related matters such as rider safety in Georgia. Published by P. Charles Scholle, P.C.
West Virginia Lawyer Blog
Examines a variety of criminal, appellate and injury legal cases, news, and opinions in West Virginia. Published by The Wolfe Law Firm.
Orange County Trademark Attorney Blog
Examines trademark cases, news, and related matters in Orange County, California. Published by Mandour & Associates